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Matrimonial and Family Law Blog

Tuesday, April 17, 2018

5 Things You Didn’t Know About Equitable Distribution of Marital Property in New York

One of the worries many people express to our divorce attorneys when considering a divorce in New York is whether they will receive a fair share of the marital property. For couples who have a high-net-worth, dividing assets can be a complicated endeavor, especially if it involves both marital and non-marital assets. Issues regarding real estate, business interests, investments, retirement benefits, and other complex assets can make property division a heated and contested divorce matter.

It is common to be worried, but before you become too stressed about matters related to equitable division, we encourage you to contact our office. Our New York equitable distribution lawyer can review your case and provide sound legal advice regarding your options and what you need to do to protect yourself during the divorce.

Dividing Marital Property in New York

New York is an equitable distribution state for marital property. Below are five things you may not be aware of about how property is divided in a divorce.

1. The Court does not automatically divide a couple’s assets during a divorce.

Judges in New York do not automatically determine the share of marital property each spouse receives after the divorce. The parties can settle matters of equitable division of marital assets before the court intervenes. If the spouses cannot agree to a settlement regarding property division, a judge then steps in to divide the property between the parties.

In some cases, spouses may choose to use a mediator to facilitate a property settlement agreement to avoid allowing the court to divide the assets. When the parties can agree to a settlement, the results are generally more acceptable to the parties compared to a court-ordered division of assets.

2. Not all property is subject to equitable distribution in a divorce.

Under New York’s equitable distribution laws, the only property that is subject to equitable division is “marital” property. Marital property is items acquired by the parties during the marriage. The property can be titled in the name of either spouse. Property owned separately by the spouses before marriage, inherited property, or gifted property is not included as marital assets.

A common dispute in divorce cases is determining the status of the parties’ property. In some cases, spouses could stand to lose or gain a substantial amount of money. Therefore, it is important to work with an experienced New York divorce attorney if you suspect equity distribution of marital assets will be an issue in your divorce.

3. An increase in the value of property is included in equitable distribution.

While a spouse’s property owned before marriage may not be subject to equitable division of assets, any value added to that property during the marriage by the other spouse is subject to property division in a divorce action.

For instance, if a wife inherited her mother’s home, that home should not be subject to an equitable division. However, if the husband renovated the home, the increase in the value of the home after renovations may be included in the equitable division of property.

4. Equitable distribution does not mean an even split between the spouses.

A judge can give one spouse a greater interest than he gives to the other spouse. The theory of equitable distribution of marital property is to divide the assets fairly. Therefore, judges may consider one or more factors when deciding how to divide marital assets. Some of the factors a judge might consider when dividing property include:

  • The length of the marriage;

  • Contributions by each spouse to the marriage;

  • The health and age of each spouse;

  • Whether spousal support has been or will be granted;

  • The property and income of each spouse during and after the marriage;

  • Who will have custody of the minor children;

  • The future financial condition and earning potential of each spouse; and,

  • The liquidity of the assets.

A factor that a judge will not consider when dividing marital assets is a spouse’s alleged wrongdoing (i.e. adultery, abuse, criminal activities, etc.). However, if the spouse’s actions impacted the family finances during the marriage, a judge may consider that when dividing property.

5. Non-marital property may be converted to marital property.

If you commingle non-marital property with marital property during your marriage, that property could be transformed into marital assets. However, this does not apply to real estate.

For more information, contact our New York equitable distribution lawyers today to discuss the best way to approach equitable distribution of marital property in a divorce action.


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